City workers tear down billboard sign

Both trailer court owner and advertising company are suing the city

By RICHARD HANNERS

Whitefish Pilot

Following through with their warning to a Park City, Utah, advertising company, city workers backed by a Whitefish police officer removed a billboard sign at the former Greenwood Mobile Home Court site last week.

In Sight Advertising claims it has taken ownership of a state sign permit previously held by Dennis Rasmussen, the trailer court owner, but the city says the sign violates its sign ordinance by advertising for an off-site business.

Back in May, the sign advertised the Flathead River Ranch, a subdivision near Glacier National Park. The most recent sign advertised The Pines, a subdivision on Big Mountain.

The city’s action Aug. 28 has prompted additional lawsuits against the city. The last time the city took on a billboard company, it was May 2, 2000, when the city ordered Montana Media to remove two off-site signs. Nearly three years later, at much labor and expense, the city prevailed in the Montana Supreme Court.

With briefs filed and attorneys moving into position, the city could be facing a similar situation. For one person, it’s deja vu all over again — Roger Nastase was a principal of Montana Media, and he’s a principal of In Sight Advertising.

While city attorney John Phelps says he didn’t know Nastase was involved, White-fish attorney Chad Wold, representing In Sight, calls that no coincidence.

A litigious history

When the city adopted a new sign ordinance in 1990, it provided a six-year amortization period for businesses to remove nonconforming signs, and no new signs were allowed. In 1994, city manager Dale Ennor identified 31 signs that would become illegal in 1996.

“The city set about contacting the owners and gradually whittled away at the list, sometimes resorting to litigation, as in the case of Montana Media,” Phelps said in his Aug. 8 response to In Sight’s application for injunctive relief.

“As of this date, only two of the original 31 signs remain, and both are relatively large, commercial billboards,” he said. “In the past, the city has contacted the owners of those signs, who have thus far refused to remove them. Litigation will probably be necessary. The city will pursue them.”

One of those signs was owned by Lamar Advertising Co. In 2000, the city adopted a new sign ordinance prohibiting all new and old off-site advertising signs.

When Rasmussen applied for a sign permit in 1989, the city council made him aware of its upcoming sign ordinance with conditions. His sign “must comply with the new sign ordinance when it comes into existence,” the council said, and the two off-site advertisers currently using his billboard — Allen’s Motel and Two For One Pizza — “must remove their advertising within 30 days.”

In his permit application, Rasmussen said the sign had existed for 20 years and he’d owned it for 14 of those years.

Between 1999 and 2002, Rasmussen allowed Montana Lube and Oil Plus LLC to advertise on his sign, in violation of the sign ordinance. Before the city took any legal action, however, the off-site advertising was removed. Since that time, the sign only advertised the Greenwood Mobile Home Court, Phelps said.

A new argument

Phelps said he was surprised by the controversy over the In Sight sign because Nastase was the principal of Montana Media when it lost its Montana Supreme Court case and Wold was his attorney. They must have known the sign at the former trailer court would be illegal.

But Wold says the Montana Media case is not a precedent in this case — In Sight’s right to equal protection under the law was violated.

In his Aug. 9 brief in support for a preliminary injunction, Wold argued that “it remains a fact that for the last seven years, the city has failed to prosecute or litigate violations by any other major off-site sign company other than the ones that Roger Nastase (manager of the subject sign) is involved in.”

To support his case, Wold quotes Phelps during a May 30 hearing before interim Whitefish zoning administrator Wendy Compton-Ring:

“I think their criticism of the city for not pursuing Lamar is perhaps well-founded,” Phelps said. “They had the same criticism when we were suing Montana Media, and we said that we would get to Lamar, that it was just luck of the draw, they were picked first, and we really will get to Lamar.”

Phelps described the “terrible expense” and “time-consuming” work for the city. Knowing that Lamar is a national sign company with substantial resources, he “intentionally delayed” taking them to court, he said.

Wold says the city “has deliberately, based upon an unjustifiable standard, arbitrarily sought enforcement of the subject regulations against small companies, specifically ones owned by Roger Nastase.”

Federal magistrate Jeremiah Lynch, however, ruled against In Sight’s request for a preliminary injunction on Aug. 9. A plaintiff must show the possibility of irreparable damage, but the Ninth Circuit does not consider economic damages a sufficient reason under equal protection claims, he said.

Lynch went on to reject Wold’s argument that the city only enforced the sign ordinance against small companies.

“The undisputed evidence of record reflects that only three illegal ‘off-site’ signs remain within the city limits of Whitefish,” Lynch said. “It also appears undisputed that since 1994, the city has ‘methodically’ caused to be removed the vast majority of impermissible off-site signs, leaving only the three referenced signs currently in place.”

In Sight Advertising failed to make a clear showing that the city’s enforcement was motivated by a discriminatory purpose that was part of a policy and plan, Lynch said.

Rasmussen files suit

Rasmussen, who lives in Rhodes Draw and owns an elk farm and several retirement homes in the valley, claims he was taken by surprise by the city’s action, Wold said. But now he’s fighting back.

Wold, who also represents Rasmussen, said Rasmussen tried to file a criminal complaint against the city at the Flathead County Sheriff’s Office. Rasmussen claims the city trespassed on his land and stole his property, Wold said, but sheriff’s officials weren’t sure how to file a criminal complaint against a municipality.

“Rasmussen owns the structure In Sight leased to put its signs on,” Wold said. “The city could have put a tarp over it rather than tearing it down. But even then, the city should have waited until In Sight’s lawsuit was finished. And if they’re going to tear down Rasmussen’s sign, they should have torn down Lamar’s across the highway, too.”

Rasmussen has also filed a civil suit in Flathead County District Court claiming the city violated his state and federal constitutional rights to due process.

“There was no warrant or order from a judge, no notice or compensation from the city,” Wold said. “The city sent a letter to Rasmussen, which he directed to In Sight, but the city never re-contacted Rasmussen after that.”